Case Document 177 Filed 04/10/20 Page 1 of 5

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

AARON RICH, 


Plaintiff, 



v. Civil Case No. 18-681 (RJL)



ED BUTOWSKY, and 
MATTHEW COUCH, and 
AMERICA FIRST MEDIA, 


Defendants. 

MEMORANDUM ORDER

 

April 35020 114]

In 2018, plaintiff Aaron Rich sued defendants Edward Butowsky, Matthew Couch,
and America First Media, alleging defendants defamed him by publishing false statements
that he conspired with his deceased brother, Seth Rich, to download emails from the
Democratic National Committee received money from Wikileaks for those
emails; and knew his brother would be murdered but did nothing to prevent it. See Compl.
1111 1, 7 [Dkt Less than a year earlier, Fox News published an article authored by
Malia Zimmerman (?Fox News Article?) on May 16, 2017, which reported that Seth Rich
provided the stolen DNC emails to Wikileaks prior to his murder in July 2016. Pl.?s Opp?n
to Mot. for Protective Order EX. 1 at 2 [Dkt. 138]. On May 23, 2017, Fox
News retracted the story, stating the article ?was not initially subjected to the high degree

of editorial scrutiny we require for all our reporting.? Dkt. 116-7 at EX. 59. Plaintiff

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alleges that after the retraction, defendants began making defamatory statements that
plaintiff was involved in his brother?s alleged scheme to provide DNC emails to Wikileaks.
Opp?n at 2. And, according to plaintiff, Zimmerman was in frequent contact with
defendant Butowsky both before and after Fox News made the retraction. Id. at 2-3; see
also id. at 4-9. Indeed, Butowsky and Couch have both stated that Zimmerman has
?knowledge about her investigation of and the article she wrote? about Seth Rich?s murder,
see Dkt. 83-3 at 2 (Butowsky Initial Disclosures), 91-29 at 2 (Couch Initial Disclosures),
and Butowsky appears to rely on her Fox News Article as a basis for his defense, see Dkt.
127 at 5.

On January 7, 2020, plaintiff served a subpoena to depose Zimmerman. See Opp?n
at 3. In plaintiff?s view, Zimmerman testimony is ?central to understanding what
information Defendant Butowsky communicated to or from third parties regarding Mr.
Rich, but also to determine whether Butowsky acted intentionally or recklessly . . . when
he shifted his narrative to focus on Plaintiff subsequent to the retraction of the Fox News
Article.? Opp?n at 3-4. On January 15, 2020, non-parties Zimmerman and Fox News
Network, LLC (collectively, ?Zimmerman?) moved for a protective order barring the
deposition of Zimmerman entirely, arguing her testimony is protected by the
newsgathering privilege under the First Amendment and New York state law. See Mot.
for Protective Order at 2 [Dkt. 114]. On March 25, 2020, I denied the motion,
noting that I would later explain more fully my ruling. I now do so here.

Zimmerman?s motion to bar her deposition fails for three reasons. First,

Zimmerman has not satis?ed her burden of showing that the privilege applies to many of

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the topics upon which plaintiff seeks her testimony, including: (1) testimony related to the
decision to retract the Fox News Article; (2) communications about plaintiff with defendant
Butowsky, who is neither a journalist nor a news ?source;?1 (3) post-publication
communications with both Butowsky and Couch; and (4) discussions regarding

CG

Butowsky?s public relations campaign relating to litigation ?led by Rod Wheeler.? See
Opp?n at 14-15. No matter the scope of the newsgathering privilege, it does not extend to
those topics, which do not involve ?newsgathering.? See Wesrmoreland 12. CBS, Inc, 97
F.R.D. 703, 707 (S.D.N.Y. 1983); Guzman 12. News Corp, 877 F. Supp. 2d 74, 76-77
(S.D.N.Y. 2012).

Second, with respect to information she shared with Butowsky, Zimmerman has
waived any newsgathering privilege. See Westrnoreland, 97 F.R.D. at 704-05, 706; NY.
Civil Rights Law see also In re Grand Jury Subpoena, Judith Miller, 438 F.3d
1141, 1177 (DC. Cir. 2006) (Tatel, J., concurring). As noted above, Butowsky is not
himself a source, nor did Zimmerman assert that he was in her motion. See generally Mot.
at 1?4, 9-10. Although Zimmerman now contends in reply that Butowsky was a source,
those arguments are not persuasive. See Reply in Supp. of Mot. for Protective Order at 8-
9 [Dl<t. 150]. Nothing in the record suggests Butowsky himself provided Zimmerman

with information undergirding the claim that the FBI produced a report showing Seth Rich

transferred DNC documents to Wikileaks.

 

1 Butowsky, himself, described his role as a facilitator of the article, not a source. See Dkt. 95-
4 at 1; see also Opp?n at 19-20. And he has elsewhere emphatically denied that he provided
information to Zimmerman. See Compl. 111] 53 n.16, Butowsky v. Folken?ik, No. 18-cv-442
(ED. Tex. June 21, 2018).

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Third, even assuming a federal or state newsgathering privilege applies to some of
plaintiff?s proposed topics of testimony, plaintiff has overcome the privilege because those
topics go to the heart of his claims. See Estate of Klieman v. Palestinian Ant/1., 293 F.R.D.
235, 241, 242 (BBC. 2013). With respect to communications with Butowsky both before
and after publication as well as the decision to retract the Fox News Article, Zimmerman?s
testimony is central to Butowsky?s state of mind when he made the allegedly defamatory
statements at issue in this suit. Whether Zimmerman spoke directly to the ?federal
investigator? source mentioned in the Fox News Article is also central to plaintiff?s claims
and, as plaintiff points out, Butowsky appears to rely on this purported federal source as
the basis for his allegedly defamatory statements. Although the identity of the purported
federal source and any direct communications between Zimmerman and the source might
arguably be covered by a newsgathering privilege, plaintiff is permitted to ask Zimmerman
whether or not she spoke directly to the source prior to publication, or instead relied on
representations by third-parties in making the assertions in the Fox News Article.2

Finally, Zimmerman?s request that I stay her deposition pending her possible
deposition in another lawsuit is without merit. Zimmerman fails to establish good cause to
further delay discovery in this case simply because she will likely be deposed in a separate
action brought by other plaintiffs. See Fed. R. Civ. P. Accordingly, her request

is denied.

 

2 I further conclude that plaintiff has exhausted all reasonable alternative sources for this
information. Estate of Klieman, 293 F.R.D. at 242. With respect to many of the topics,
Zimmerman is the only witness who can provide testimony, other than defendant Butowsky.
Plaintiff should not have to rely solely on his testimony to gather evidence on these issues.

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Zimmerman remains free, of course, to object to speci?c questions at her deposition
should plaintiff seek to elicit testimony that she has a good-faith basis to believe is subject
to the privilege, meaning the information was gathered from sources with the intent to
publish that information and was not shared with non-source third-parties. But she cannot
wholly Shirk her civil discovery obligations simply because she is a journalist.

In light of the foregoing, it is hereby

ORDERED that non-parties Malia Zimmerman and Fox News Network, 

joint motion for a protective order barring deposition is DENIED.

.
RICHAR MEON
United States District Judge

SO ORDERED.